Research On The Good Faith Principle In Civil Procedure

This doctorial dissertation studies the principle of good faith in the civil procedure law. As a judge with 15 year civil court experience, the author has frequently been disturbed by various dishonest behaviors presented in the civil proceedings. At the same time, being a researcher focusing on theoretical and doctrinal development in civil procedure, the author also often feels pitiful that the scholars in the field have failed to pursue systematic and in-depth studies on the good faith principle. The underdevelopment of academic research, the deficiency of laws and the difficulties of trial practice have motivated the author to devote her dissertation to this subject. Through the research, the author endeavors to construct a comprehensive legal framework for implementing the good faith principle in China's civil procedure. Such framework includes the basic principles, the special rules and the legal liability rules. The author hopes that establishing the new framework will contribute to the resolution of difficulties encountered in the trial practice.The good faith principle as a legal doctrine was originated from morality, and now implicates multiple areas within both private law and public law. As such, it is difficult to fully examine the subject from any single perspective. In conducting the research, the author has leveraged on her civil court practice experience, and also supplemented the conventional jurisprudence approaches with other methodologies borrowed from ethnics, economics and sociology.This dissertation contains six chapters, totaling approximately 230,000 words. Chapter One“General Introduction”defines the principle of good faith first and then discusses the doctrinal status of such principle in the civil procedure law. In the structure of“legal principles– legal rules,”the good faith principle is a legal principle; while in the structure of“basic principle– special principle,”it is a basic principle. Within the general framework of civil procedural principles, the good faith principle does not necessarily conflict with the other basic principles, such as the principle of parity and reciprocity, principle of disposition and in particular the principle of debate. Rather, it complements the other principles and such others also guarantee that the good faith principle plays a correct role in the practice. In addition, the chapter also analyzes the function of the good faith principle in civil procedure.Using the ancient Roman law as the starting point, Chapter Two“The Development of the Good Faith Principle”discusses the historical development of the good faith principle in the Roman laws, constitutional law, administrative law, civil law, criminal law, criminal procedural law, and in particular, the establishment of its basic doctrinal status in the civil procedure law. Despite the heated on-going academic debate over whether the good faith principle should be introduced into the civil procedure law, many countries have already stipulated such principle in their legislations. However, recognition by the legislation only reveals the law as it is, the academic controversy over how the law ought to be remains to be settled. After analyzing the issue from the multiple perspectives of economics, psychics, sociology, jurisprudence and civil procedure law, the chapter reaches a conclusion that introducing the good faith principle into the civil procedural law is of a practical necessity.Chapter Three“The Comparative Study of the Good Faith Principle in Civil Procedure”explores the principle by considering three sets of relationship. The first set compares the moral good faith principle with the good faith principle in civil procedure law. The author argues that while the two have some commonalities, they differentiate from each other in terms of the bases of existence, the logical origins and scopes of regulation, and the consequences of violations. In addition, there exists an interdependent and interchangeable relationship between the moral principle and the principle in civil procedure. On the one hand, legislation legalizes the moral principle; on the other hand, observing law vindicates the morality of legal good faith principle. The second set of relationship compares the good faith principle in the contexts of civil law and civil procedural law. The author argues that the two share the ancient Roman bonae fidei proceeding concept as their origins and the rethinking of liberalism as their ideological bases, and through judicial practice they are closely connected with each other. Nonetheless, the different legal relationships governed by the two principles clearly divide them up, as they have distinct subjects, contents and objects. The final set of relationship compares the civil procedural good faith principle embodied in the civil law system and in the common law system from three different angles: the idea, the establishment and the expression. While the principle presents itself very differently in the two systems, there also seems to be a trend of gradual convergence of the two systems in this respect by their drawing on experiences of each other.From an abstract principle to a specific reasonable judgment, we face the issue of how to institutionalize the principle to specific rules. In order to avoid the principle of good faith being abused, detailed statutory law and case law are required for appropriate application of the principle in practice. Chapter Four introduces the special legal rules that ensure the good faith behaviors of parties involved in civil proceedings. The special rules include those of: (i) prohibiting maliciously initiating civil proceedings, (ii) prohibiting conflicting actions, (iii) prohibiting abuse of civil procedural rights, and (iv) prohibiting obstructing others'proceeding actions. Chapter Five focuses on the rules regulating the good faith behaviors of judges and other participants in civil proceedings. Because judges make the final judgments, even if all other subjects in the civil proceedings act with honest, without the judges'good faith behaviors fair and just judgments would still be impossible. Therefore, judges'behavior in good faith is critical to the well function of the civil procedure system and to the rule of law in a country. As such, a significant portion of the chapter discusses the rules governing judges'trial discretion, free evaluation of evidence, preventing surprise judgments, as well as the good faith cooperation among the courts. In addition, the chapter also selects witnesses as the representative of other subjects in civil proceedings and analyzes the rules of ensuring witnesses'honest testimony in civil actions.To prevent the good faith principle from becoming an empty slogan, it is necessary to establish relevant legal liability rules for punishing violation of the principle. Chapter Six“Guaranty of the Good Faith Principle in Civil Procedure”first discusses the procedural liability resulting from violating the good faith principle in civil procedure, and then the substantive liability resulting from such violation taking the standpoint of the tort law. Finally, the author points out that there exist certain conflicts in the legal liability system relating to the behaviors violating the good faith principle, which include (i) tort lawsuits and res judicata of civil judgments, (ii) liability of judges'bad faith behaviors and their judicial exemptions, and (iii) the liability for violating the good faith principle and stability of civil proceedings. The author then tries to find an effective solution for such conflicts through the implementation of the good faith principle.